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Commonwealth v. Francis

Supreme Judicial Court of Massachusetts, Suffolk

July 20, 2016


          Heard Date March 8, 2016.

         Indictments found and returned in the Superior Court Department on March 13, 2006.

         The cases were tried before Frank M. Gaziano, J., and a motion for a new trial, filed on October 1, 2012, was considered by him.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          David J. Rotondo for the defendant.

          Benjamin B. Selman, Committee for Public Counsel Services, for Committee for Public Counsel Services.

          Vincent J. DeMore, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          GANTS, C.J.

         This is yet another in the series of cases arising from the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton drug lab). Here, the defendant was found guilty at trial of the trafficking and distribution of cocaine. At trial, certificates of drug analysis (drug certificates) were admitted in evidence, signed by Dookhan as an assistant analyst, that declared that the substances in question were cocaine and that set forth their weight. The defendant learned of Dookhan's misconduct after trial, and now moves for a new trial based on that misconduct. At issue on appeal is whether a defendant found guilty at trial who moves for a new trial is entitled to the same conclusive presumption of "egregious government misconduct" that we applied in Commonwealth v. Scott, 467 Mass. 336, 352-354 (2014), to cases where a defendant seeks to withdraw his or her guilty plea after learning of Dookhan's misconduct.

         We conclude that a defendant in these circumstances is entitled to the same conclusive presumption. The consequence of the conclusive presumption is that we deem it error to have admitted the drug certificates or comparable evidence regarding Dookhan's drug analysis where the defendant had no knowledge of Dookhan's misconduct and therefore no opportunity to challenge the admissibility or credibility of that evidence. We further conclude that the appropriate standard to be applied to the erroneous admission of this evidence is the prejudicial error standard applied to preserved nonconstitutional errors. Applying that standard, we conclude that, apart from the drug certificates, the evidence regarding the weight and identity of the substances in question was not overwhelming, and we therefore are not "sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Vinnie, 428 Mass. 161, 163, cert, denied, 525 U.S. 1007 (1998), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Consequently, we vacate the defendant's convictions and grant the defendant a new trial.[1]


         On October 4, 2006, the defendant was convicted by a Superior Court jury of trafficking in twenty-eight grams or more of cocaine, in violation of G. L. c. 94C, § 32E (b) (2), [2] and unlawful distribution of cocaine, in violation of G. L. c. 94C, § 32A (c) . We summarize the evidence at trial, reserving discussion of some of the evidence for later.

         On November 22, 2005, Boston police Officer Andrew Miskell, along with other officers in the drug control unit, conducted physical surveillance of the area outside the Forest Hills subway station in the Jamaica Plain section of Boston. At approximately 8:30 £.M., Officer Miskell observed a man, later identified as Marcus Henderson, on three separate occasions leave the passenger seat of a motor vehicle, walk to a public pay telephone, make quick telephone calls, and then return to his vehicle and wait. After approximately ten minutes, a man, later identified as the defendant, arrived and parked his vehicle about thirty to forty feet in front of Henderson's vehicle. Henderson then left his vehicle and entered the passenger's side of the defendant's vehicle.

         Officer Miskell saw the two men turn towards each other; after "a brief encounter, " Henderson left the defendant's vehicle and walked towards his vehicle. Two other members of the drug control unit, Detective Aaron Blocker and Officer Lawrence Celester, approached Henderson, and Detective Blocker told Henderson that he had "to conduct a threshold inquiry." Henderson then placed a plastic bag of what appeared to the officers to be "crack" cocaine in his mouth. Officer Celester told Henderson that they were not interested in him, and if he wanted to cooperate, he should give them the drugs. Henderson then spit out the bag. After Henderson was placed under arrest, Detective Blocker informed Officer Miskell that he had recovered drugs from Henderson.

         Officer Miskell followed the defendant's vehicle and, when it was stuck in traffic, approached the driver's side on foot. He displayed his badge, announced that he was a police officer, and ordered the defendant to step out from the vehicle. Officer Miskell observed that the defendant held cash in his left hand, which the officer removed from him upon placing him under arrest. The cash that was seized from the defendant's hand totaled $360. An additional $597 in cash was recovered from the defendant during the booking process.

         The defendant's vehicle was searched in the parking lot of the police station later that evening by Sergeant Detective William Feeney. He observed a "Gunk Fix-A-Flat" can in a bag on the back seat that he recognized as a "hide-a-can." He unscrewed the removable bottom portion of the can and found two plastic bags inside that contained individually wrapped bags of a substance that he believed to be crack cocaine.

         At the police station, the defendant was informed of the Miranda rights and interviewed by Officer Kenneth Reid in an unrecorded conversation. Officer Reid asked the defendant "where he got his drugs from and how much drugs he was selling." The defendant said that he sold between one-quarter and one-half kilograms of cocaine every one and one-half weeks. Officer Reid told the defendant that he would like to learn who was supplying the defendant with this cocaine, and the defendant told him that his supplier was a "white male from the [N]orth [S]hore area"; that he "would call his supplier up and order a half a kilogram of cocaine"; and that "[the police] could arrest [the supplier] . . . when [the supplier] made the cocaine delivery." Officer Reid informed the defendant that the district attorney would have to approve using him as a confidential informant, and that that would have to wait until he was arraigned and obtained counsel.

         Through the testimony of Detective Blocker and Sergeant Detective Feeney, the Commonwealth offered in evidence three drug certificates signed by Dookhan as "Assistant Analyst" on January 20, 2006. The first drug certificate regarding the substance seized from Henderson declared that the tested substance was cocaine and that it weighed 1.34 grams. The second certificate declared that the substance contained in eight plastic bags was cocaine with a net weight of 19.66 grams. The third certificate declared that the tested substance contained in thirty nine plastic bags was cocaine with a net weight of 19.04 grams.

         After the Commonwealth rested, Henderson testified that he telephoned the defendant and waited for him at the subway station because he wanted to give the defendant some money to purchase beer and liquor for him for Thanksgiving. When the defendant arrived, Henderson entered the defendant's vehicle, gave the defendant between eighty and one hundred dollars, along with directions to his home, and showed the defendant a small package of cocaine that he had in his mouth. He stated that the defendant had not given the cocaine to him.

         The defendant testified that he and Henderson "had some arrangement to get together for Thanksgiving, " and that Henderson gave him one hundred dollars in cash for food, beverages, and liquor, as well as directions to Henderson's home, after Henderson entered his vehicle. Henderson also showed him "a substance, " and asked ...

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